Terrell A-G CJ:

This is an appeal from the decision of Mr. Cussen J, dismissing an appeal from the Magistrate who originally heard the case. The amount was only $350, and accordingly the leave of the Court of Appeal was required under s. 17(a) of the Courts Enactment. The application for leave was filed within one month of the judgment of the Court below, which was dated the 7 September 1940, and on 18 November 1940, leave to appeal was granted. The Order further stated:

And it is further ordered that this appeal be set down for hearing at the next Court of Appeal in Kuala Lumpur.

The notice of appeal was filed on 26 April 1941, and the memorandum of appeal on 30 April 1941.

At the bearing before us a preliminary objection was raised that the notice of appeal was out of time. Mr. Ramani for the respondent relied on s. 18(i) of the Courts Enactment, and argued that the appeal should have been brought, by filing the notice of appeal and paying the deposit, within one month of the Order of the 18 November 1940. But it is clear from s. 18(ii) that the "month" referred to in s. 18(i) is a month from the date of the judgment or order appealed from, and that the sub-section is inapplicable where special leave to appeal has been given long after such month has expired. It must be presumed that the Court of Appeal did not make an order which was nugatory ab initio. No doubt, if the respondent had insisted, the Order of the Court of Appeal would have provided a time within which the appeal should be brought, but in the absence of any direction on the point, the matter is regulated by the rules relating to proceedings in appeals (1935 r. 1, Allen Vol I, p. 251A). Sub-rule 9 provides that the notice of appeal shall be given not less than 14 days before the commencement of the sitting at which the appeal is heard. This sub-rule was complied with, and as there is no other prevision dealing with the matter, the preliminary objection was overruled.

As regards the merits of the appeal the facts are not really in dispute. The appellant and the respondent are adjoining owners. In November 1937, the plaintiff (respondent) built upon his land a house in accordance with a plan approved by the Sanitary Board. The respondent in building his house erected the 9" wall adjoining the appellant's land own land and half on the appellant's. No previous arrangement had been made with the appellant, who was in fact in India though he had an attorney in Kuala Lumpur. The respondent's house was completed in July 1938, and three months later the appellant erected a house on his own plot, making use of the party wall above referred to. The suit was brought by the respondent claiming from the appellant half the cost of the party wall.

Although an express agreement to construct was at one time alleged (para. 3A of the plaint), there has been a finding that no such agreement has been proved. The respondent therefore relied on s. 70 of the Contract Enactment (Cap. 52), and the short point for decision is whether the learned Judge in the Court below was right in finding that the provisions of this section could be applied. The section reads as follows:

Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

Admittedly the section goes far beyond the English law, but even so the section must not be strained beyond its actual provision. On the facts it is clear that the respondent, so far as he built a wall which might be of benefit to the appellant, did not intend to do it gratuitously. It is also conceded that the appellant has enjoyed the benefit of the wall built by the respondent. But these are not the only conditions that must be complied with. The plaintiff must establish that he acted lawfully in building the wall,